Playing the rights card

"What right do we have to touch and smell an animal that has rested
beneath the surface for 10,000 years?"
David G. Anderson, Times Higher Education Supplement, 8 August 2003

Rights often seem fundamental to our sense of what is morally acceptable. The
UN’s Universal Declaration of Human Rights is a quasi-sacred document, the benchmark
against which the decency of a country is measured. Human Rights NGOs like Amnesty
International are virtually beyond criticism, for what they are defending is so
obviously just. And democratic governments pass laws at their peril that are perceived
to infringe on the "inalienable" rights of their citizens.

But while the discourse of rights is extremely powerful in the public domain,
intellectually speaking, they command less than universal respect. Philosopher
and social reformer Jeremy Bentham famously said that talk of "natural rights
is simple nonsense: natural and imprescriptible rights, rhetorical nonsense –
nonsense upon stilts." Many since have agreed with him, arguing that rights
are not things we are born with but rather artefacts of human law. Rights are
not the moral basis of law, they are rather products of the law, which has its
moral basis in something completely different.

Whether one takes the broadly Benthamite line or not, what is clear and obvious
is that it is not clear or obvious what rights are, where they come from, and,
most importantly, which rights are genuine and which bogus. What is the right
to life and what kinds of beings have it? Does the right to work entail a duty
on the part of the state to provide work? Does the right to free speech include
hate speech?

All these complexities should be clear to anyone who has tried to think seriously
about rights. Yet such complexities are often swept away by the rhetoric of rights.
Simply by claiming a right an argument can appear to be clinched or strengthened.

This is what the anthropologist David G. Anderson did in his article on digging
up the remains of mammoths in Siberia. His piece details the interesting traditions,
rituals and – though he would find the word too judgemental – myths of the Evenki,
a people indigenous to Siberia. He points out the conflicts between the wishes
and views of scientists who want to get their hands on mammoth remains and those
of the Evenki, who only permit their use if they "present themselves".
Even then, a gift must be left in return.

As part of his argumentative armoury he asks his rhetorical question about what
right we have to dig up the mammoth’s remains. There is something very powerful
in the question "What right do you have to " which seems to demand
an answer. It puts the person questioned on the back foot.

But must such a question have an answer? In general, we do not require specific
rights to perform specific actions. There is no right to whistle, or to use the
toilet. Nor is there a right to read a newspaper on a train. Someone who challenged
us to state by which right we were doing any of these activities would be asking
a very odd question indeed. We generally have the right to do whatever we want,
as long as we don’t infringe on other people’s rights of non-interference or break
the law.

In the case of digging up mammoth remains, the only significant rights we could
be infringing would be the rights of the land’s owners to retain the integrity
of their territory. To say that the dead mammoth has a right not to be disturbed
is surely stretching the notion of rights too far. And it is not even the case
that the Evenki have a right not to have their traditions offended against. As
John Stuart Mill persuasively argued, mere offence cannot be the basis for a restriction
of action, or else we’d have to ban anything that anyone takes offence at. Which
given the variety of human responses means just about everything.

Just as it can be rhetorically powerful to erroneously demand by what right people
act, so it can be effective to claim a right as justifying one’s own action. Yet
when people claim the government owes them support to conceive a child artificially
because they have a right to have children; that they should be allowed to spread
racist or homophobic views because they have a right to free speech; or even that
there is no need for greater gun controls in America because of the right to bear
arms; it should be clear that it is all too easy to evoke a seemingly unobjectionable
right to justify a possibly objectionable course of action.

That should make us wary of invoking rights which seem to us to be fundamental
and inalienable without stopping to ask if such a right really exists, as well
as making us wary when people play the rights card to try to persuade us of their
point of view. If rights are indeed important, we should think carefully before
claiming or granting them.